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The Effort to Change California Election Law, Through an Initiative, to Help the GOP

Why Democrats Should Not Only Fight It, But Also Push For a National Popular Vote Plan

by

John W. Dean

Soon we will learn whether a few desperate but very well-funded Republicans have succeeded in collecting the necessary 434,000 valid signatures to go directly to California voters on a ballot initiative to change the election laws. If the initiative were to succeed, it could significantly help elect a GOP presidential candidate in 2008.

With a tone of considerable loathing, The American Conservative magazine - a very Republican magazine -- describes this "California Schemin'" as a gimmick, arising out of a loser mentality, "to change California from a state that awards its electoral votes on a winner-take-all basis to one that hands them out proportionately." Simply stated, the magazine notes, the goal of this effort is "to scrape up another 20 electoral votes" for the next Republican presidential candidate.

Most of the media attention has focused on the money behind this effort, which has been laundered through a dummy corporation in Missouri - and believed to come from Rudy Giuliani backers - along with the failed early efforts toward the same goal. But by late October 2007, more money and more professional help had arrived to rescue the effort. According to reports in the Los Angeles Times, it appears that they will reach their goal, and today, November 30, 2007, they will meet their deadline.

I expect the initiative organizers to announce their success soon. Of course, official confirmation of the signatures will take a bit longer, but we should all fully expect this to be on California's ballot this coming summer. The organizers, according to the New York Times, are suggesting June as "a realistic goal for a statewide vote" on their proposal.

Will this measure succeed? Maybe, but either way, it appears this nasty drill is a no-lose undertaking for Republicans. Let me explain why, and what Democrats and others might do about it.

Voter Approval of the Presidential Reform Act Measure Is Not Impossible, but Not Likely

The Republican money that is behind this effort to break up California's block of 55 electoral votes is not unlike the money that supported the recall drive against former Democratic Governor Gray Davis. In fact, wealthy GOP California Congressman Darrell Issa, who was a principal mover in the Davis recall that put Republican Arnold Schwarzenegger in the governor's chair, is among those backing this latest effort to game the processes. No one believed the recall would succeed.

Without descending too deeply into the weird world of California initiative politics, suffice it to say that California ranks close to the bottom for voter registration in the nation, but more importantly, it ranks almost as poorly for voter turnout. When an issue is hot and there is a general election, you may get 45% of the voters voting. But for a statewide vote outside the normal election cycle - as this would be, as a June 2008 election - not even 30% of registered Californians may take part, and those who do will likely be the activists with an agenda who are supporting the measure.

This initiative, innocuously and misleadingly known as the Presidential Election Reform Act, will be sold to California voters as the rebirth of American democracy, with deep-voiced narrators reminding Californians that they are "fair-minded" people, and nothing is fair about the elections where the winner takes all. Of course, the winner-take-all rule is the norm in 48 states, with only Maine and Nebraska apportioning electoral votes by the popular tallies within congressional districts. However, Californians will be told that they should follow the efforts of Maine and Nebraska.

Most will yawn, ignore it all, and pay no attention. This, of course, is what the proponents of the Presidential Reform Act are banking on: the hope that with the assistance of allied groups ranging from the religious right to white supremacists, their activists can do the impossible and make a bit of history. It is a long shot, but it is a shot.

Opposition to the Presidential Reform Act Will Be Vigorous

To date, California's sometimes centrist Republican Governor Schwarzenegger is not supporting this effort. His own earlier efforts to get around the Democratic-controlled California Legislature by using the initiative process failed miserably. Meanwhile Democratic opposition to the Presidential Reform Act will be no-holds-barred. When the proposal first appeared, the California Schemin' story reports, "Squeals could be heard ranging from Howard Dean to every California Democrat [sic] elected official, crying everything from disenfranchisement to 'stealing' elections."

For good reason, the California Democratic Party chairman, Senator Art Torres, has said he will fight such a law in the Courts. As Doug Kendall reported for Slate, the so-called Presidential Reform Act is loaded with legal problems.

California political analyst Tony Quinn told NPR that Democrats were overreacting: "The likelihood of this ever passing is quite slim. I suspect that it's more a matter the Republicans would like to put it on the ballot, drive the Democrats crazy and make them spend $20 million defeating it."

And that is likely what will happen, which is why it is a no-lose situation for Republicans. In addition, it will divert the time and attention of the Democratic presidential nominee, who will surely make certain that California voters do not let this changing of the rules in the middle of the race slip through without a mighty fight.

Real Electoral College Reformers Must Take Advantage of the Coming California Dust-Up

Back in 2001, FindLaw columnists Vikram and Akhil Amar discussed Electoral College reform in a three part series, concluding with an explanation of how the states could adopt direct elections and remove the well-recognized weakness of the Electoral College without amending the Constitution. This suggestion did not fall on deaf ears, and state legislators - as well as several former federal legislators - from both political parties have taken action.

After years of preparation, National Popular Vote was formed on February 23, 2006; it is a bi-partisan organization to support the undertaking. National Popular Vote Inc. is a 501(c)(4) non profit corporation whose purpose is "to study, analyze and educate the public regarding its proposal to provide for the nationwide popular election of the President." The organization has drafted legislation, and is coordinating efforts to get its proposed legislation enacted in all states. By proceeding state by state - and it would only take passage in the eleven most populous states to accomplish the goal - the cumbersome and near impossible task of amending the Constitution is avoided.

National Popular Vote's proposed legislation (hereafter, I will refer to both the organization and the legislation as "NPV") is ingenious. It is an agreement between states that represent a majority of the electoral votes. It becomes effective whenever a sufficient combination of the states and the District of Columbia represent an electoral majority - which means that, together, they have 270 electors, constituting a simple majority of the Electoral College. These electors, based on the interstate NPV compact, will agree to vote for the presidential candidate who wins the popular vote nationwide.

"The National Popular Vote bill would guarantee that a presidential candidate who receives the most votes in all 50 states will win the presidency," the NPV explains. Each elector selected under the NPV will vote for the candidate who wins the total popular vote, regardless of the vote within that elector's state.

Notwithstanding Schwarzenegger's veto of the NPV when it was before him last year, there has been steady bipartisan progress throughout the nation, state by state, to move the NPV forward. Polling shows that over 70% of Americans support direct national polling for presidential elections, and would like to avoid the focus on only a few "battleground" states while the interests of the rest of the nation are ignored.

In short, Americans want real reform of the presidential electoral system. No more Bush v. Gore cliffhangers, and no more election years in which a president wins in the Electoral College but loses the popular vote, as Bush did in 2000. For this reason, the coming effort to rig the California vote to assist the Republicans is a perfect opportunity to refocus attention on the need to reform the Electoral College.

Whoever wins the Democratic Party's nomination has a winning issue in campaigning on electoral reform, doing so in a bipartisan manner, and bringing the nation together on the idea of popularly electing our presidents. Since Republicans are going to force this question onto the national agenda with their actions in California, the Democrats can show true leadership by raising awareness of the National Popular Vote, as they work to kill the Presidential Reform Act.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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